Last week, the Biden Administration released its Blueprint for a Fair, Orderly, and Humane Immigration System. The Blueprint contains a number of components. Here, we will discuss two: Expedited Removal and "fairness of the U.S. asylum system." Despite the Administration's good intentions, I fear that we cannot have it both ways. Either we have a system to remove new arrivals expeditiously or we have a system to fairly adjudicate asylum applications at the border. We cannot have both.

Let's start with some numbers. The crisis at the Southern border seems to be perpetually getting worse. In June 2021 (the most recent month where data is available), "CBP encountered 188,829 persons attempting entry along the Southwest Border." "This total represented a five percent increase over May 2021." More than a third of these would-be migrants had made a prior attempt to enter the U.S., and so if you look only at "unique new encounters," the numbers are slightly lower for 2021 than they were for 2019. Perhaps that's good news (since repeat customers can be dealt with more quickly than new arrivals), or maybe its bad news (since migrants are not being deterred from repeated attempts to illegally enter the U.S.). The majority of those who arrive at the border are expelled under a public health directive related to the pandemic (in June 2021, 103,014 people were refused entry under this directive). More significantly for our purposes, during June 2021, there were 10,003 credible and reasonable fear cases recorded at the border. These are initial claims for asylum by arriving noncitizens. Of these, 4,464 people "passed" their credible or reasonable fear interviews and will presumably be permitted to apply for asylum before an Immigration Judge--at an expedited removal hearing.

I must admit that I find all this a bit confusing. Even if you remove the 103,014 people from the mix, that still leaves over 88,000 people who arrived at the border in June. Did only 10,000 of those people request asylum? That seems awfully low. Also, the approval rate for credible and reasonable fear interviews is less than 45%. In the past, it was much higher. For example, in January 2018, almost 90% of applicants passed their credible fear interviews. Due to policy changes from the Trump Administration, the approval rate had been dropping, but a 45% approval rate is still lower than I would have expected.

For those people placed into expedited removal proceedings (4,464 in June 2021), they should have their asylum claims quickly adjudicated by a judge. If they are approved, they can remain in the U.S. If they are denied (and if any appeal is denied), they will be expeditiously removed from the United States. In theory, this makes sense--people who are eligible for asylum under the law should be permitted to stay; those who are not eligible should be removed. In practice, however, things are not so simple.

The main problem is that it takes time to properly prepare an asylum application. New arrivals are often disoriented and frightened. They may not understand the system or what is expected of them. Many do not speak English or have an attorney to help them. Also, it takes time to gather evidence and translate documents. Applicants need time to identify the legally relevant aspects of their cases, to prepare affidavits, obtain witness letters, and think about legal obstacles. Most important, asylum seekers need time to talk with a lawyer to decide how best to present their case. While some asylum claims are obvious, others are not. And unless asylum applicants have an opportunity to get professional advice, they could easily lose the opportunity to effectively present their claim.

To the Administration's credit, the "President’s FY 2022 Budget requests $15 million to provide representation to families and vulnerable individuals, as well as $23 million to support DOJ legal orientation programs." If this budget is passed (and that's a big "if"), these resources should help asylum seeker at the border and elsewhere. However, even with additional legal assistance, applicants still need time to meet with attorneys and develop their cases.

And that's the problem: The expedited removal process does not provide enough time. For overworked lawyers managing heavy caseloads, it strikes me as unlikely that they can do their best work under such rushed conditions.

Moreover, if pandemic restrictions ease, and if the government lifts the Trump-imposed health ban, we can expect many more people to seeks asylum, thus further straining resources.

So what's the solution? First, as I have written before, we as a nation need to decide who we want to protect. If we can reach a democratic decision on this point, it may give our leaders the political wiggle room to enact more rational policies at the border. In the likely event that we do not reach such a decision, the Administration needs to do its best to clarify who is eligible for protection under current law. There has been some movement in that direction, and some Trump-era changes have been reversed. But even under the pre-Trump rules, it was very difficult for most Central American asylum seekers to properly present their cases, as such cases tend to be legally complicated.

Barring any real change to the law, asylum seekers simply need more time to present their cases. Perhaps the expedited removal process could be modified to allow asylum seekers additional time if they need it. Those who are prepared to present their cases can do so, but those who are not prepared can be offered more time. Allowing newly-arrived asylum seekers into the U.S. and giving them sufficient time to properly present their cases is fair to the asylum seekers, but may be politically untenable.

In its Immigration Blueprint, the Administration states that it is "working to improve the expedited removal process at the border to fairly and efficiently determine which individuals have legitimate claims for asylum and other forms of protection." While fairness and efficiency are both important, the expedited removal process prioritizes speed over due process of law. Presumably, this is done to appease those many Americans who are concerned that our border is too porous, and to avoid negative political repercussions. Unfortunately, it seems impossible to have it both ways, and if the Biden Administration continues to favor speed over fairness, some applicants who could qualify for asylum will instead be deported to face persecution.

Originally posted on the Asylumist: